Ogilvie v. McDONALD'S CORPORATION
| Citation | 294 A.D.2d 550,742 N.Y.S.2d 897 |
| Parties | SIMONE OGILVIE et al., Appellants,<BR>v.<BR>McDONALD'S CORPORATION et al., Respondents, et al., Defendant. |
| Decision Date | 28 May 2002 |
| Court | New York Supreme Court Appellate Division |
Ordered that one bill of costs is awarded to the defendants.
While leave to amend pleadings "shall be freely given" (CPLR 3025 [b]), it may be denied where the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit (see Leszcynski v Kelly & McGlynn, 281 AD2d 519; Curran v Auto Lab Serv. Ctr., 280 AD2d 636). The defendant Richard Yandoli established that, as president of the injured plaintiff's corporate employer, the action against him is barred by the workers' compensation defense (see Heritage v Van Patten, 59 NY2d 1017; Coppola v Singer, 211 AD2d 744; see also Alejandro v Riportella, 250 AD2d 556). Accordingly, the Supreme Court erred in granting the plaintiffs' motion to add Yandoli as a defendant. Likewise, the Supreme Court should have granted that branch of the cross motion of the defendants other than the ABC Corporation which was for summary judgment dismissing the complaint insofar as asserted against the defendant Thurman Lee Foods, Inc., based on the workers' compensation defense.
The defendants Yandoli Foods, Inc., and Yandoli Foods, Inc.—National Store No. 11542 () provided ample evidence in support of their cross motion to demonstrate that they are not answerable for any liability to the plaintiffs as they did not become corporate entities until nearly two months after the incident at issue. In opposition, the plaintiffs offered speculative claims of no probative value. Accordingly, the Supreme Court erred in denying that branch of the cross motion which was for summary judgment dismissing the complaint insofar as asserted against the Yandoli corporate defendants (see Ramnarine v Memorial Ctr. for Cancer & Allied Diseases, 281 AD2d 218).
The Supreme Court providently exercised its...
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